New NEJM Study Proves Tort Reform Does Not Make Our Communities Safer

Posted By David C. Rash || 16-Oct-2014

The New England Journal of Medicine published a new study on the effects of tort reform on emergency room department treatments. The researchers examined Medicare emergency room fee-for-service claims data from 1997-2011 in Texas, Georgia and South Carolina, all of which changed their emergency care liability standard from negligence to gross negligence. They found that such reforms did not change doctors’ testing behaviors and that “physicians are less motivated by legal risk than they believe themselves to be.”

“We did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments.”

They also extended their discussion to safe harbors from adherence to practice guidelines, saying they would not affect physicians’ testing behavior, either:

“One might argue that physicians in the reform states do not believe that they are fully protected. This is true to some degree, but the critique may be applied to any other law. For example, some have advocated for “safe harbor” laws, which would provide specific protections to physicians who adhere to evidence-based guidelines. If physicians do not believe that they are adequately protected by a legal standard of gross negligence, then they also might not believe that they are protected by a statute that provides a safe harbor for evidence-based guidelines. Indeed, a recent study showed that evidence-based guidelines would be applicable to only a minority of malpractice claims.”

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